Woods v. State

• Decision Date: 24 November 1902
• Citation: 81 Miss. 164,32 So. 998
• Court: Mississippi Supreme Court
• Parties: LEE WOODS v. STATE OF MISSISSIPPI

32 So. 998

81 Miss. 164

LEE WOODS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 24, 1902

October 1902

FROM the circuit court of Leflore county. HON. FRANK E. LARKIN Judge.

Woods the appellant, and one Wiley Short were jointly indicted by the grand jury of Leflore county for the murder of one Henry Hog. Upon trial, Short was acquitted, but appellant was convicted of manslaughter, and appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Coleman & Ray, for appellant.

When it is charged that each of two defendants of his malice aforethought did the killing, it was error to embrace them both in the same indictment.

The fifth instruction for the state is fatally defective and erroneous; first, it is upon the weight of evidence since it singles out a certain line of testimony and charged the jury to convict on that, contrary to what this court has said in Jackson v. State, 66 Miss. 89, and numerous other cases since then; and second, said instruction leaves out the question whether the killing was done in necessary self-defense. Johnson v. State, 66

Monroe McClurg, attorney-general, for appellee.

OPINION

TERRAL, J.

The appellant, being convicted of manslaughter and sentenced to the penitentiary appeals, and assigns several errors in the proceedings against him. He demurred to the indictment, which was overruled, and of that he complains.

The indictment in proper form in other respects, alleges: "That Lee Woods and Wiley Short in said county, on the 30th day of June 1902, willfully, feloniously and each, of his malice aforethought, did then and there kill and murder Henry Hog, against, etc." The defect in the indictment pointed out in the assignment and brief of appellant is "that when it is charged that each of his malice aforethought did the killing, it was error to include them both in the same indictment."

The objection to the indictment, in our opinion, is rather critical and technical than substantial. The defect, if admitted, does not render the indictment void; because it has long been established, that mala gramatica non vitiat chartem, when the meaning is apparent.

The third and fourth instructions for the state are assigned for error. As we must reverse the judgment for another cause, it is unimportant that we pass upon these grounds as it cannot arise upon a future trial; the acquittal of Short having...